Protection for Title IX Whistle Blowers

Submitted by Doug Lederman on March 30, 2005 - 4:00am

After a loss[1] in the executive branch, supporters of women’s sports received a big win in the nation's highest court.

Two weeks after the U.S. Education Department issued guidelines that were widely perceived to undermine Title IX enforcement, a deeply divided U.S. Supreme Court ruled[2] Tuesday that individuals who bring complaints about sex discrimination under Title IX can seek damages from colleges or schools that retaliate against them for blowing the whistle. Title IX bars educational institutions that receive federal funds from discriminating on the basis of gender.

Some legal experts and college officials said the ruling could encourage more coaches and other college employees to report perceived discrimination by curtailing the risk that their careers will suffer if they do so.

The 5 to 4 decision in Jackson v. Birmingham involved the treatment of Roderick Jackson, a high school teacher in Birmingham, Ala. In 2000, he complained to officials at the school he had been transferred to the year before about the unequitable treatment of the girls’ basketball team. A year later, after a series of negative evaluations, he was removed from his coaching duties. He sued the Birmingham school board, charging that it had violated Title IX by retaliating against him for protesting discrimination against the girls team.

A federal court in Alabama dismissed Jackson’s suit, concluding that the law does not give individuals the right to sue for retaliation. In 2002, the U.S. Court of Appeals for the 11th Circuit backed up the lower court, finding[3] that “[n]othing in the text indicates any Congressional concern with retaliation that might be visited on those who complain of Title IX violations.” Jackson appealed, and the U.S. Justice Department filed a friend of the court brief[4] taking his side.

Justice Sandra Day O’Connor wrote the five-member majority’s opinion overturning the lower courts’ rulings. She offered a series of conclusions to get there: (1) The court has previously ruled that private parties can seek damages for intentional sex discrimination under Title IX. (2) Retaliation against a person who complains about sex discrimination is in itself a form of “intentional” discrimination, because the person is facing “differential treatment.” And (3) it is discrimination “on the basis of sex” because it is “an intentional response to the nature of the complaint: an allegation of sex discrimination.”

In other words, it doesn't matter, she argued, that Jackson himself is a man, because he was mistreated for advocating on behalf of athletes who were discriminated against because of their gender.

O’Connor rejected the lower courts’ finding, and the Birmingham school board’s argument, that by failing to specifically bar retaliation when it crafted Title IX – as it did in Title VII of the Civil Rights Act of 1964, which bars race and gender discrimation in employment -- Congress did not intend to provide that protection.

“Because Congress did not list any specific discriminatory practices when it wrote Title IX, its failure to mention one such practice does not tell us anything about whether it intended that practice to be covered,” O'Connor wrote.

The four dissenters in the case, led by Justice Clarence Thomas, accused the majority of ignoring the language of Title IX and the will of Congress.

“Its holding is contrary to the plain terms of Title IX, because retaliatory conduct is not discrimination on the basis of sex. Moreover, we require Congress to speak unambiguously in imposing conditions on funding recipients through its spending power. And, in cases in which a party asserts that a cause of action should be implied, we require that the statute itself evince a plain intent to provide such a cause of action,” Thomas wrote.

Robb Jones, senior vice president and general counsel at United Educators, which insures colleges and schools against legal and other risks, portrayed the court’s ruling as better policy than law. The decision, he said, breaks with a 2001 ruling by the court in Alexander v. Sandoval,[5] in which it found that Congress’s failure to proscribe a specific form of discrimination in Title VI of the Civil Rights Act of 1964 meant that plaintiffs could not seek redress for such discrimination under that law.

Justice O’Connor sided with the majority in that case, but switched sides in this one, Jones noted. “It seems that she felt as a matter of policy that Title IX ought to include claims of retaliation,” he said.

Jones said he doubted the court’s ruling would alter the Title IX landscape in athletics. “I’ve never seen in our cases any fear of coming forward,” he said. “And there are very few things that our college clients take more seriously than Title IX’s command” to provide equitable opportunities to female athletes, he said.

Nancy Hogshead-Makar, an assistant professor at Florida Coastal School of Law and former Olympic swimmer, sees that landscape differently.

“The women coaches who call me and want to talk about bringing a suit are just scared to death,” she said. “They’re worried not only that they’ll get fired but that they’ll get blackballed and never coach again.” She said most coaches are “loathe” to sue their institutions, but that they are reluctant to do even what Roderick Jackson sought to do in Birmingham: “to be good advocates, to solve problems informally, to ask hard questions [about budgets] that athletes themselves can’t.”

O’Connor’s majority opinion hews more closely to Hogshead-Makar’s view. “Reporting incidents of discrimination,” she writes, “is integral to Title IX enforcement and would be discouraged if retaliation against those who report went unpunished. Indeed, if retaliation were not prohibited, Title IX’s enforcement scheme would unravel.”